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Judge declines to hold Utah County’s top prosecutor in contempt over Facebook video in death penalty case

Deseret News logo Deseret News 8/10/2020 Annie Knox
a man wearing a suit and tie: Utah County Attorney David Leavitt speaks during a press conference about the criminal case involving the death of Provo police officer Joseph Shinners at the Utah County Commission Chambers in Provo on Wednesday, Jan. 23, 2019. © Kristin Murphy, Deseret News Utah County Attorney David Leavitt speaks during a press conference about the criminal case involving the death of Provo police officer Joseph Shinners at the Utah County Commission Chambers in Provo on Wednesday, Jan. 23, 2019.

PROVO — A judge in Provo has declined to hold Utah County’s top prosecutor in contempt over video of an old news conference that remained on his official Facebook page following a gag order for attorneys in a high-profile, double-murder case.

Fourth District Judge Derek Pullan issued the written ruling Friday, dealing a blow to defense lawyers who raised the contempt allegation against Utah County Attorney David Leavitt.

As punishment, they sought to have the death penalty taken off the table for Jerrod Baum, accused of slitting the throats of teen couple Riley Powell and Brelynne “Breezy” Otteson in 2018 and dumping their bodies in an abandoned mine shaft.

Pullan wrote that he “cannot find by clear and convincing evidence that it was the conscious objective” of Leavitt to violate the order. Even if Leavitt had purposely flouted the gag order, Pullan continued, Baum’s lawyers didn’t show that a prohibition on the death penalty was needed to address the harm.

Attorneys for Baum did not immediately provide comment.

In July 2019, Leavitt announced he would allow a jury to decide whether Baum, if convicted, should face the death penalty. In responding to a reporter’s question, he said his office believed a star witness in the case “based on a lot of evidence that the jury will never hear.”

In response to the comment, Pullan ordered attorneys in the case to adhere to a professional standard prohibiting them from giving out new information that could prejudice a jury, while still allowing them to make some statements.

Baum’s defense attorneys alleged Leavitt violated the order by failing to take down Facebook video of the July news conference until months later.

Although Leavitt delegated the handling of social media, he is the one who runs the office, defense attorney Mike Brown argued last month. Brown argued that taking the death penalty off the table is the most appropriate remedy.

Leavitt countered that he believed his office had already hidden the video from the public and was surprised to learn it was still there months later. He said he “walled” himself off from the case following the gag order and had an employee oversee it instead.

Pullan wrote in his ruling that Utah County is home to more than 600,000, but just 422 people watched the video on Leavitt’s Facebook page. Even if each was somehow summoned for jury duty in the case, bias could be rooted out by questioning the potential jurors about whether they saw the video and if so, about whether the footage influenced them, Pullan wrote.

The judge initially closed the July contempt hearing to the public at the request of defense attorneys, who said further publicity would threaten Baum’s right to a fair trial. But Pullan later reversed course after allowing attorneys for the Deseret News to intervene. The newspaper argued Baum’s attorneys hadn’t been specific enough about the harm publicity would do and noted there are several tools, like the questionnaires, to seat a fair jury.

Leavitt told the Deseret News on Monday he does not believe his behavior violated a set of ethics standards for attorneys. He said the contempt proceeding wasn’t needed and could have been settled with a call from Baum’s defense team.

“Like I said from the beginning, it was an incomplete pass, not an interception,” Leavitt said.

The bill for his representation from an outside law firm totaled about $85,700, according to invoices Leavitt provided Monday. He said the high cost reflected the obscure legal issues and the volume of research they required.

His office drew a contract with the private firm Clyde Snow because state law prohibits prosecutors from also providing criminal defense, Leavitt said. Defense attorneys had raised the contempt allegation as a criminal matter. They later sought the civil remedy of no death penalty but by that point, Leavitt’s office had already hired the firm, he said.

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